[1] Whether a claimant who received a disposition rejecting disclosure from a public agency has a legal interest in seeking revocation of the disposition by an administrative litigation (affirmative), and whether there is no benefit in a lawsuit or justified a non-disclosure decision in a case where information subject to a disclosure request is already widely known to others by being disclosed to the public or is easily known through Internet search, etc. by being disclosed via the Internet (negative)

[2] Criteria for determining whether the information constitutes a “special corporation established under the Special Act” under Article 2 subparag. 3 of the Official Information Disclosure Act, etc.

[3] The case affirming the judgment below holding that the Korea Broadcasting System (KBS) constitutes a public institution obligated to disclose information

[4] The meaning of “a trade secret in management and business operation of a corporation, etc.” under Article 9(1)7 of the Official Information Disclosure Act and the method of determining whether there exists “justifiable profit” that may refuse to disclose

[5] Whether information about the result of securing news gathering activities by a broadcasting company or about planning, programming, production, etc. of a broadcast program or information about the process constitutes “matters concerning business management and trade secrets of corporations, etc.” under Article 9(1)7 of the Official Information Disclosure Act and whether there is a legitimate interest to refuse disclosure (affirmative with qualification)

[6] In a case where the Korea Broadcasting System (KBS) filed a request for disclosure of information on one of the editing tapes for broadcasting, “new 60 minutes,” which was produced by the Korea Broadcasting System (KBS), but the Korea Broadcasting System was deemed to have made a non-disclosure decision because it did not make a decision on whether to disclose information within 20 days from the date it received the request for disclosure, the case holding that the court below erred in the misapprehension of legal principles as to the judgment below which judged otherwise although the above information constitutes the non-disclosure information under Article 9(1)7 of the Official Information Disclosure Act

[1] Since the citizen's right to information disclosure is legally protected specific rights, the claimant who requested the public institution to disclose information, but received the disposition rejecting the disclosure, has legal interest in seeking the revocation of the disposition rejecting the disclosure through administrative litigation, and the fact that the information subject to the request for disclosure is already disclosed to others and widely known or can easily be easily known through Internet search, etc. cannot be justified.

[2] Whether a certain corporation constitutes a “special corporation established under the Special Act,” which is obligated to disclose information pursuant to Article 2 subparag. 3 of the Official Information Disclosure Act and Article 2 subparag. 4 of the Enforcement Decree of the same Act, shall be determined individually based on whether the profit pursued by performing the business is not limited to the internal interests of the pertinent corporation, but is the public interest of the community as a whole, with the aim of ensuring the citizen’s right to know and ensuring the citizen’s participation in state affairs and transparency in state administration, in mind of the legislative purpose of the above Act, which is to guarantee the citizen’s right to know, and to secure transparency in state affairs. However, the purpose of the Act, which is the basis for the establishment of the pertinent corporation, differently from the general corporation established under the Civil Act or the Commercial Act, should be comprehensively considered, such as whether there is a need to seek a direct request for information disclosure from other public institutions such as State agencies and local governments in relation to the pertinent corporation’ public affairs.

[3] The case affirming the judgment below which held that the Korea Broadcasting System (KBS) established and operated under the special law of the Broadcasting Act constitutes a "special corporation established under the Special Act" under Article 2 subparagraph 4 of the Enforcement Decree of the Official Information Disclosure Act, and is a "public institution" under Article 2 subparagraph 3 of the Official Information Disclosure Act.

[4] Article 9(1)7 of the Official Information Disclosure Act provides that “Any information that is likely to seriously harm legitimate interests of corporations, etc. if disclosed as confidential business or business information of corporations, organizations, or individuals is disclosed” shall be subject to non-disclosure in order to guarantee citizens’ right to know and secure citizens’ participation in state affairs and transparency in state affairs, and to protect legitimate interests by preventing leakage of confidential business activities of corporations, etc., by providing for matters necessary for public disclosure of information held and managed by public institutions. In light of the legislative purpose of the Official Information Disclosure Act, “business secrets of corporations, etc.” under Article 9(1)7 of the Act refers to all information on business activities that are favorable to others, or all confidential matters on business activities, which are held and managed by public institutions, and whether such disclosure has a strong interest should be determined depending on whether there is a legitimate interest to refuse disclosure, and whether there is a legitimate interest to the public institution prior to the determination of whether there is a legitimate interest to observe the Act should be more strictly determined by the legislative intent of the Act.

[5] In light of the fact that information on the planning, programming, production, etc. of the broadcast program, which has been secured through the news gathering activities of a broadcasting company, or on the planning, programming, etc. of the broadcast program, may be seen as falling under “all information on business activities which are advantageous to the disclosure of others,” in view of the fact that the objectivity, fairness, and neutrality of the broadcast program should be protected. In a situation where the evaluation of the broadcast program is considerably different depending on the values or interests of individuals or groups, it is difficult to make the broadcasting company disclose all of the information on planning, programming, production, etc. of the broadcast program possessed by the broadcasting company as a method of requesting the disclosure of information under the Official Information Disclosure Act without restricting the information on the planning, programming, etc. of the broadcast program, which may cause a result of the disclosure of information to the broadcasting company, thereby undermining the management and business interests of the broadcasting company and undermining the freedom and independence of the broadcasting company. Therefore, it is necessary not only to disclose information on planning, programming, etc. of broadcast program to the public but also to protect the public’s life and health of the public institution.

[6] In a case where the Korea Broadcasting System (KBS) filed a request for disclosure of information with respect to one of the 60 minutes editings for broadcasting, which is the 60-minutes “BS,” which was produced by the Korea Broadcasting System (KBS) to clarify the truth of the facts about the thesis manipulation case by the YI, but the Korea Broadcasting System was deemed to have made a non-disclosure decision because it did not make a disclosure decision within 20 days from the date on which it received the request for disclosure of information, the case holding that the above information constitutes information on the planning, programming, production, etc. of broadcast programs, and information which is deemed to be information subject to non-disclosure under Article 9(1)7 of the Official Information Disclosure Act, and thus, constitutes “information which is deemed to seriously undermine the legitimate interests of corporations, etc., if disclosed.”

[1] Article 12 of the Administrative Litigation Act, Articles 5(1) and 9(1) of the Official Information Disclosure Act / [2] Article 2 subparag. 3 of the Official Information Disclosure Act, Article 2 subparag. 4 of the Enforcement Decree of the Official Information Disclosure Act / [3] Article 2 subparag. 3 of the Official Information Disclosure Act, Article 2 subparag. 4 of the Enforcement Decree of the Official Information Disclosure Act / [4] Article 9(1)7 of the Official Information Disclosure Act / [5] Article 9(1)7 of the Official Information Disclosure Act / [6] Articles 9(1)7 and 11(5) of the Official Information Disclosure Act

[1] Supreme Court Decision 2005Du8733 Decided July 13, 2007, Supreme Court Decision 2005Du15694 Decided November 27, 2008 / [2] Supreme Court Decision 2008Du5643 Decided April 29, 2010 (Gong2010Sang, 1022) / [4] Supreme Court Decision 2007Du1798 Decided October 23, 2008

Plaintiff

Korea Broadcasting System (Law Firm Samung Law Office, Attorneys Kim Young-ok, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Nu27013 decided July 2, 2008

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Whether to benefit from a lawsuit;

Since the citizen's right to information disclosure is legally protected specific rights, the claimant who filed a request for information disclosure with respect to a public institution and received a disposition rejecting the disclosure of information through administrative litigation has a legal interest in seeking revocation of the disposition rejecting the disclosure of information, and the fact that information subject to the request for disclosure is already disclosed to others and widely known or can easily be easily known through Internet search, etc. through Internet cannot be justified (see Supreme Court Decisions 2005Du8733, Jul. 13, 2007; 2005Du15694, Nov. 27, 2008).

According to the reasoning of the judgment below, the court below rejected the defendant's defense that the lawsuit of this case seeking the revocation of the defendant's refusal disposition of information disclosure of this case, which was made by the defendant's producer, by processing ice and caption on the virtual editing tape for the program of this case, was unlawful since there is no legal interest in the lawsuit. However, although the court below's reasoning is somewhat insufficient, it is just to conclude that the plaintiff has a legal interest in seeking revocation of the refusal disposition of information disclosure of this case, and there is no error of law as to the nature of the right to claim information disclosure

2. Whether the right to request information disclosure has been abused;

In light of the purpose, contents, and purport of the Official Information Disclosure Act (hereinafter “Information Disclosure Act”), a request for information disclosure cannot be deemed to constitute an abuse of rights unless there exist special circumstances such as seeking information disclosure for the purpose of inducing the defendant (see, e.g., Supreme Court Decisions 2003Du1370, Sept. 23, 2004; 2004Du2783, Aug. 24, 2006).

In light of the above legal principles, even if multiple persons, including the plaintiff, filed a request for information disclosure of the same content, such circumstance alone alone cannot be deemed to have filed a request for information disclosure of this case solely for the purpose of inducing the defendant, and otherwise, the court below's decision that the plaintiff's request for information disclosure cannot be deemed to constitute abuse of rights is acceptable, and there is no error of law such as misunderstanding of

3. Whether an institution is subject to request for information disclosure;

Whether a corporation constitutes a “special corporation established by the Special Act” under Article 2 subparag. 3 of the Information Disclosure Act and Article 2 subparag. 4 of the Enforcement Decree of the same Act, based on the legislative purpose of the above Act, which intends to guarantee citizens’ right to know and secure citizens’ participation in state affairs and transparency in state administration, and on whether the profit derived from performing duties is not limited to the internal interest of the relevant corporation, but has the public interest character corresponding to the overall interest of the community, although the duties assigned to the relevant corporation are not a national administrative affairs or not. However, the purpose of the Act which is the basis for the establishment of the relevant corporation differently from the general corporation established by the Civil Act or the Commercial Act, such as administrative management and supervision of the organization and activities of the corporation, etc., the existence and degree of financial support and subsidization to the relevant corporation, and whether it is necessary to seek a direct request for information disclosure against the relevant corporation separately from the request for information disclosure with respect to the public affairs of the relevant corporation (see Supreme Court Decision 2008Du5643, Apr. 29, 2010).

In light of the above legal principles, the court below is just in holding that the defendant, a special corporation established and operated by a special law called the Broadcasting Act, constitutes a public institution with the duty to disclose information under Article 2 subparagraph 4 of the Enforcement Decree of the Information Disclosure Act, and there is no error in the misapprehension of legal principles as to "public institution" under Article 2 subparagraph 3 of the Information Disclosure Act, as otherwise alleged in the ground of appeal.

4. Whether information constitutes information subject to non-disclosure under Article 9 (1) 7 of the Information Disclosure Act;

A. Article 9(1)7 of the Information Disclosure Act provides that “Any information that is deemed likely to seriously undermine legitimate interests of corporations, etc. if disclosed as confidential business or business secrets of corporations, organizations, or individuals, is subject to non-disclosure” under Article 9(1)7 of the Information Disclosure Act, with the intention of guaranteeing citizens’ right to know and ensuring citizens’ participation in business activities and transparency in state affairs, and protecting legitimate interests by prescribing necessary matters concerning the duty to disclose information held and managed by public institutions. Considering the legislative purpose of the Information Disclosure Act, the term “business secrets of corporations, etc.” under Article 9(1)7 refers to all information on business activities that are favorable to the disclosure of others, or all confidential matters on business activities that are held and managed by public institutions, and whether to disclose such information should be determined depending on whether there is a legitimate interest to refuse such disclosure, and whether there is a legitimate interest should be more passively determined by the Information Disclosure Act than the legislative intent of the Information Disclosure Act.

On the other hand, broadcasting has a direct impact on people's lives while performing public functions, such as forming democratic public opinion, providing living information, and improving national culture. In light of the public nature of broadcasting, most countries that have public broadcasting systems for the improvement of public interest and cultural development have established and run a public broadcasting business. In addition, the freedom of speech and publication guaranteed under Article 21 (1) of the Constitution include the freedom of broadcasting, and the freedom of broadcasting has the characteristics of subjective freedom as well as the characteristics of broadcasting, which contribute to the substantial guarantee of freedom of speech, which serves as the basis for the existence and development of democracy, by enabling the exchange of diverse information and opinions, and the freedom of broadcasting is also guaranteed to the defendant who is a public broadcasting company.

As such, in order for the defendant to properly enjoy freedom of broadcasting as the subject of freedom of the press while carrying out the public functions as a public broadcasting company, the existence and activities of the broadcasting company as the subject of freedom of the press must not only be independent from interference with the state power, but also from the various powers of society infringing on freedom of broadcasting. Article 1 of the Broadcasting Act also provides that "the purpose of this Act is to protect the rights and interests of viewers, promote democratic formation of public opinion and enhance national culture, and contribute to the development of broadcasting and the promotion of public welfare by guaranteeing the freedom and independence of broadcasting and raising the public responsibility of broadcasting." In addition, Article 4 provides that "the freedom and independence of broadcast programming shall be guaranteed" (Article 1), and "no person may regulate or interfere with broadcast programming unless otherwise prescribed by this Act or other Acts (Article 2)."

Meanwhile, information on the planning, programming, production, etc. of a broadcast program or information on the result of a broadcast program secured through a news gathering activity by a broadcast company may be deemed to fall under “all information on business activities which are favorable to others not known to others,” in terms of the justification for protecting the relationship with other broadcast companies in competition, relationship with viewers, and objectivity, fairness, and neutrality of a broadcast program. In a situation where the evaluation of a broadcast program is considerably different depending on the values or interests of individuals or groups, compelling the Defendant to disclose all of the broadcast programs without restriction on the planning, programming, and production, etc. of the broadcast program possessed by the Defendant by means of a request for information disclosure under the Information Disclosure Act is exposed to any kind of criticism or attack that may arise as a result of the information disclosure, thereby undermining the Defendant’s business and business interests, and undermining the freedom and independence of the broadcast program.

Therefore, the Defendant’s non-disclosure of information on planning, programming, production, etc. of broadcast programs constitutes “matters concerning management and business secrets of corporations, etc.” under Article 9(1)7 of the Information Disclosure Act, except for information necessary to be disclosed in order to protect people’s life, body, or health from danger and injury caused by business activities, or information necessary to be disclosed in order to protect people’s property or life from illegal or unjust business activities, and there is a legitimate interest to refuse such disclosure.

B. According to the reasoning of the judgment below, Nonparty 1, a producer of the Seoul National University, was ordered by Nonparty 2, a producer for tracking 60 minutes around December 2005, to produce a program on the research program of YI, Seoul National University, and then the professor of Gerald Schat, Inc., Ltd., applied for patent by using the technology of YI, and the NT-1 (the stem cell of this paper in 2004, which served as the basis for patent application of the YI, hereinafter referred to as the "the program of this case"), to produce a program on the authenticity of the publication of the Seoul National University, which contains 60 minutes of patent or biotechnology, and the defendant, on April 206, 2006, submitted a separate view that "the aforementioned program of this case is fair and objective." However, the defendant had no debate over the content of the program of this case 60 minutes on the broadcast page of this case."

Examining the above facts in light of the legal principles as seen earlier, the instant information constitutes “information on the management and trade secrets of corporations, etc., which are prescribed as information subject to non-disclosure” under Article 9(1)7 of the Information Disclosure Act, and where disclosed, it does not change on the ground that the Defendant decided not to broadcast the instant program, or Nonparty 1 arbitrarily included the part of processing ice and caption in the instant information.

Nevertheless, solely on the grounds indicated in its reasoning, the lower court determined that the instant information is not a matter concerning Defendant’s management and trade secrets, but, if disclosed, likely to seriously undermine Defendant’s legitimate interests. In so doing, the lower court erred by misapprehending the legal doctrine on the information subject to non-disclosure under Article 9(1)7 of the Information Disclosure Act, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)